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BAIL is a very
complicated topic, but it is one of the most important since it
determines whether defendants will wait for trial in jail or on
the street. Essentially, every time a defendant appears in court
until the very end of the case, the court will want some assurance
that s/he will appear the next time. Sometimes the court will
simply accept a promise to reappear; this is called PERSONAL
RECOGNIZANCE. Personal recognizance is set in some amount
of money, such as $1,000. No money changes hands when the bail
is set, and the defendant does not have to deposit any money.
But if the defendant fails to appear or breaks some other condition
of release, s/he will owe the State the amount of the recognizance.
In setting bail, the judge may look at family background, employment
history, education, and criminal record, if any. The judge will
be looking for anything in a defendant’s background that
might indicate whether the defendant is likely voluntarily to
reappear in court.
In serious cases, or if the defendant has a long criminal record
or has failed to appear in the past, the Court wants more of an
assurance than a promise alone. In these cases, some type of money
bail will be set. Most often, the money bail that is set is called
SURETY bail. If
the judge sets, for example, $10,000 with surety, the defendant
may secure release only by depositing a legal title to property
worth $10,000 with the Court. This is called “posting”
bail. Anyone’s property may be posted with the Court, so
long as they show true ownership and that the property has a value
at least equal to the amount of the surety required. Because many
people do not own property, two alternatives have emerged. First,
the law allows a defendant to deposit a cash amount equal to 10%
of the surety bail set. If s/he appears in court every time it
is required, the 10% cash will be returned; if not, the deposit
will be forfeited. Defendant who do not have the resources to
deposit cash of 10% of the surety amount may hire a BAIL
BONDSPERSON to post the surety. Bondspersons are licensed
and approved by the Court, but they are private business people
and a defendant’s arrangement with a bail bondsperson is
a private contract. For a fee, usually about 5% of the amount
of the surety, the bondsperson will put up his or her cash or
property with the court. Sometimes a judge will set CASH
BAIL. If this is the bail set, property may not be posted
instead of cash and the full amount of the cash required must
be deposited.
Defendants charged with non-capital crimes are entitled to have
bail set in a reasonable amount. A CAPITAL
CRIME is one where life imprisonment is a possible punishment.
Some examples of capital crimes are murder, robbery, burglary,
rape, and arson. A “reasonable amount” of bail is
not necessarily something affordable. An amount of bail may be
beyond reach and still legally be considered reasonable.
In capital crimes, the state may object to bail and request a
BAIL HEARING,
usually in District Court. The judge may release the defendant
pending that hearing, but most often defendants are held in jail
until that time. At the hearing, the prosecution will call witnesses
to testify. The defense may call witnesses as well, but there
is generally no purpose in doing so. If, after the hearing, the
judge believes that the defendant is likely to be found guilty
by a jury, s/he can order the defendant held without bail at the
Adult Correctional Institutions until trial. If the evidence is
not sufficient to show probable guilt, the judge must set bail.
The judge is authorized to set bail even if the evidence is sufficient,
if the judge feels that the defendant is likely to appear voluntarily
when required.
If bail is set in an amount that is not reasonable, a defendant
may request the Court which set the bail to reduce it. If that
fails, the defendant may request that the next highest court lower
the bail.
It is important to know that the only time bail is constitutionally
guaranteed is prior to trial for a non-capital offense. Defendants
charged with capital offenses are not entitled to have bail set,
although it may be. Defendants who have been convicted in the
Superior Court are not entitled to have bail set pending an appeal
to the Supreme Court, although it may be.
When is bail set?
Bail is sometimes set at the police station at a SPECIAL
ARRAIGNMENT by a bail commissioner. If it is set there,
it may be posted at the police station or at the ACI and the defendant
will be released on a promise to appear in Court. Generally, the
more serious the offense, the less likely it is that bail will
be set at the police station. Usually, a fee is required for a
bail commissioner to come and set bail at the police station.
Regardless of whether the defendant was released from the police
station, a new bail decision will be made by a judge at the first
court appearance. That bail will generally stay the same until
there is a judgment of guilt or innocence in the case. It may
change, however, if the defendant does not maintain good behavior
while out on bail, does not reappear when required, or if the
case moves from one court to another. In addition, it may change
if a serious event happens during the case, typically if a guilty
verdict is returned by a jury and the defendant is awaiting sentencing.
At this point, it may be cancelled altogether.
Behavior while on bail must be as good as behavior while on
probation. A defendant promises both to reappear when required
and to “keep the peace and be of good behavior.” Special
conditions of release on bail may he set as well, and a bail release
may be supervised or not. If the state believes a violation of
one of these conditions has occurred, whether by an arrest for
a new offense or something else, the state may charge a violation
of bail. After a hearing similar to a probation violation hearing
on whether the conditions of the bail were violated, with witnesses
and testimony, the judge may order the defendant held without
bail until trial or may increase the bail. If bail is revoked,
the defendant may be kept in jail awaiting trial for as long as
three months.
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